Suit not abated by marriage of female party. When plaintiff's specifying the name, description and place of abode of any person whom he alleges to be the legal representative of the deceased defendant, and whom he desires to be made the defendant in his stead. The Court shall thereupon enter the name of such representative on the record in the place of such defendant1, and shall issue a summons to such representative to appear on a day to be therein mentioned to defend the suit ; and the case shall thereupon proceed in the same manner as if such representative had originally been made a defendant and had been a party to the former proceedings in the suit : Provided that the person so made defendant may object that he is not the legal representative of the deceased defendant, or may make any defence appropriate to his character as such representative. When the plaintiff fails to make such application within the period prescribed therefor, the suit shall abate, unless he satisfies the Court that he had sufficient cause for not making the application within such period 2. may 369. The marriage of a female plaintiff or defendant shall not cause the suit to abate, but the suit notwithstanding be proceeded with to judgment, and, where the decree is against a female defendant, it may thereupon be executed against her alone. If the case is one in which the husband is by law liable for the debts of his wife, the decree may, with the permission of the Court, be executed against the husband also; and, in case of judgment for the wife, execution of the decree may with such permission be issued upon the application of the husband, where the husband is by law entitled to the subjectmatter of the decree 3. 370. The bankruptcy or insolvency of a plaintiff in any 1 This does not prevent the Court from making (under sec. 32) some other person a party, when he claims, on good prima facie evidence, to be the representative of the deceased respondent, 8 Mad. 300. 2 The provisions of sec. 368 are inapplicable to the case of the death of a judgment-debtor, 6 All. 259. 3 From the C. L. P. Act, 1852, sec. 141. suit which his assignee or the receiver appointed under bankruptsection 351 might maintain for the benefit of his creditors cy, or insolvency shall not bar the suit, unless such assignee or receiver declines bars suit. to continue the suit and to give security for the costs thereof within such time as the Court may order 1. when as If the assignee or receiver neglect or refuse to continue the Procedure suit and to give such security within the time so ordered, signee fails the defendant may apply for the dismissal of the suit on the to continue suit or give ground of the plaintiff's bankruptcy or insolvency, and the security. Court may dismiss the suit and award to the defendant the 2 costs which he has incurred in defending the same, to be proved as a debt against the plaintiff's estate3. 371. When a suit abates or is dismissed under this chapter, Effect of no fresh suit shall be brought on the same cause of action. 4 abatement or dis cation to But the person claiming to be the legal representative of missal. the deceased or bankrupt or insolvent plaintiff may apply for Applian order to set aside the order for abatement or dismissal; set aside and, if it be proved that he was prevented by any sufficient abatement cause from continuing the suit, the Court shall set aside the missal. abatement or dismissal upon such terms as to costs or otherwise as it thinks fit5. or dis 372. In other cases of assignment, creation or devolution Procedure of any interest pending the suit, the suit may, with the in case of assignment leave of the Court, given either with the consent of all parties pending or after service of notice in writing upon them, and hearing their objections, if any, be continued by or against the person to whom such interest has come either in addition to or in 12 Bom. H. C. 257: 13 Suth. Civ. R. 432. 2 Orders rejecting applications for dismissal are appealable, sec. 588, cl. (19). 3 From the C. L. P. Act, 1852, sec. 142, which applies only to actions pending when a bankruptcy or insolvency occurs, Stanton v. Collier, 23 L. J., Q. B. 116. ✦ within 60 days from the date of the order for abatement or dismissal, Act XV of 1877, sched. II, art. 171 C. 59 Bom. 275. This section does suit. substitution for the person from whom it has passed, as the case may require1. Power to allow plaintiff to with liber CHAPTER XXII. OF THE WITHDRAWAL AND ADJUSTMENT OF SUITS. 373. If, at any time after the institution of the suit, the Court is satisfied on the application of the plaintiff (a) that withdraw the suit must fail by reason of some formal defect, or (b) that ty to bring there are sufficient grounds for permitting him to withdraw fresh suit. from the suit or to abandon part of his claim with liberty to bring a fresh suit for the subject-matter of the suit or in respect of the part so abandoned, the Court may grant such permission3 on such terms as to costs or otherwise as it thinks fit4. Limitation law not affected by first suit. If the plaintiff withdraw from the suit, or abandon part of his claim, without such permission, he shall be liable for such costs as the Court may award, and shall be precluded from bringing a fresh suit for the same matter or in respect of the same part5. Nothing in this section shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others. 374. In any fresh suit instituted on permission granted under the last preceding section, the plaintiff shall be bound 1 This section applies to cases 2 whether original or appellate. The order permitting withdrawal For cases in which permission has been granted, see 14 Suth. O. J. App. 17: 16 Suth. Civ. R. 100: 17 ibid. 164: 20 ibid. 163: 5 N. W. P. 116: : 3 All. 528. The provisions of sec. 373 are not affected by the Bengal Tenancy Act, VIII of 1885, sec. 37. 5 But see Bourke, Part VII, p. 162, where the plaintiff withdrew his suit with the defendant's consent, and it was held that he might bring a fresh suit. 6 This section and section 54 are the only provisions in the Code which justify proceedings analogous to a nonsuit, 9 All. 697. by the law of limitation in the same manner as if the first suit had not been brought1. 2 mise of suits. 375. If a suit be adjusted wholly or in part by any lawful Comproagreement or compromise, or if the defendant satisfy the plaintiff in respect to the whole or any part of the matter of the suit, such agreement, compromise or satisfaction shall be recorded, and the Court shall pass a decree in accordance therewith so far as it relates to the suit 3, and such decree shall be final, so far as relates to so much of the subject-matter of the suit as is dealt with by the agreement, compromise or satisfaction 2. CHAPTER XXIII. OF PAYMENT INTO COURT. defendant 376. The defendant in any suit to recover a debt or Deposit by damages may, at any stage of the suit, deposit in court of amount such sum of money as he considers a satisfaction in full of in satisfacthe claim. tion of claim. 377. Notice in writing of the deposit shall be given Notice of through the Court by the defendant to the plaintiff, and deposit. the amount of the deposit shall (unless the Court otherwise directs) be paid to the plaintiff 5 on his application. 378. No interest shall be allowed to the plaintiff on Interest on any sum deposited by the defendant from the date of the one of the parties wished to recede, deposit not allowed to plaintiff after notice. Where accepts de posit as satisfac receipt of such notice, whether the sum deposited be in full of the claim or fall short thereof. : 379. If the plaintiff accept such amount only as satisfacplaintiff tion in part of his claim, he may prosecute his suit for the balance and if the Court decides that the deposit by the defendant was a full satisfaction of the plaintiff's claim, the plaintiff must pay the costs of the suit incurred after the deposit and the costs incurred previous thereto, so far as they were caused by excess in the plaintiff's claim1. tion in part. Where he accepts it tion in full. If the plaintiff accept such amount as satisfaction in full of as satisfac- his claim, he shall present to the Court a statement to that effect, and such statement shall be filed and the Court shall pass judgment accordingly, and, in directing by whom the costs of each party are to be paid, the Court shall consider which of the parties is most to blame for the litigation. Illustrations. (a) A owes B rs. 100. B sues A for the amount, having made no demand for payment and having no reason to believe that the delay caused by making a demand would place him at a disadvantage. On the plaint being filed, A pays the money into court. B accepts it in full satisfaction of his claim, but the Court should not allow him any costs, the litigation being presumably groundless on his part. (b) B sues A under the circumstances mentioned in Illustration (a). On the plaint being filed, A disputes the claim. Afterwards A pays the money into court. B accepts it in full satisfaction of his claim. The Court should also give B his costs of suit, A's conduct having shown that the litigation was necessary. (c) A owes B rs. 100 and is willing to pay him that sum without suit. B claims rs. 150 and sues A for that amount. On the plaint being filed, A pays rs. 100 into court and disputes only his liability to pay the remaining rs. 50. B accepts the rs. 100 in full satisfaction of his claim. The Court should order him to pay A's costs. When security for costs CHAPTER XXIV. OF REQUIRING SECURITY FOR COSTS. 380. If, at the institution or at any subsequent stage of a suit, it appears to the Court that a sole plaintiff is, or 1 This rule qualifies the discretionary power as to costs conferred on the Court by sec. 220, supra. |